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Court rejects defendants’ request for relief from overbroad keyword searches; “defendants must now lie in the bed that they have made”

When the court tells you that “more artful” search terms might be appropriate, and gives you an opportunity to narrow those terms, listen. Senior District Judge J. Owen Forrester did just that, and when defendants didn’t listen, his sympathies appeared exhausted.

The defendants had been ordered to produce email from two backup tapes selected by plaintiff in January 2008. Plaintiff selected the two tapes and provided search terms. Defendants searched but seven mailboxes on the tapes. So plaintiff filed a motion and at an April hearing the court addressed it. The court ordered all the mailboxes on the two tapes searched, plus an additional tape of plaintiff’s choosing. The court also noted that despite the defendants’ previous objections and representations, meaningful discoverable information was coming from the tapes.

The court was somewhat sympathetic, however, noting that plaintiff should be more artful with its search terms and that plaintiff should review a list of the people with mailboxes on the tapes, which defendant should provide, to determine whether all the mailboxes should be searched. The court also granted defendants the opportunity to narrow the search terms.

As the court noted, defendants did not provide the list of people whose mailboxes were on the tapes. Nor did defendants narrow the search terms. So the court was not particularly sympathetic to defendants; request for relief from having to review and produce the results all of the search. The court did provide some relief regarding the results from two search terms that clearly had no relevance to the case. The court had previously given plaintiff the opportunity to amend the complaint, which plaintiff had not taken. Other than that, however, the defendants’ pleas were unavailing. The court noted:

Defendants’ actions have delayed the production of electronic discovery throughout this litigation. Defendants have consistently tried to minimize the likely value of this discovery. The court’s minimal forays into the electronic discovery that has been produced has shown just the opposite. Despite all of this, the court is not unsympathetic to the massive amount of discovery involved in this matter, the considerable burden of working with it, and the overproduction that often comes with email production. Therefore the court gave Defendants numerous tools by which to educe the burden of email discovery…. Defendants did not take advantage of these opportunities.